Your Legal Questions Answered:Copyright, Defamation and CAP Code

Forewarned is forearmed!

It’s becoming increasingly clear that organisations who engage in social media activity MUST have not only a strategy, but policy and guidelines in place, to limit the grey area when it comes to accountability and to enable employees to actively and effectively engage (whether on behalf of the organisation or otherwise) within the context of clear parameters and recognised standards. Inevitably, legal implications must be considered.

I’m delighted to introduce Ashley Hurst, Associate at Olswang LLP, to answer some of your questions on social media use and legal implications:

@jeffpullinger asked: Can you save other peoples public tweets to a database on your own server with out permission?

Ashley Hurst: The starting point here is that the copyright in a tweet is retained by the author or, if published by an employee in the course of his/her employment, by the employer. Whilst Twitter ensures in its terms and conditions that it is granted a very wide licence to use tweets for its own purposes, that licence does not extent to use of the tweets by other Twitter users. The question is then what the user does with the tweet. For example, if used purely for the purposes of criticism or review, for private study, or for educational purposes, this will not be an infringement of copyright. However, commercial use of tweets without consent, for example for promotional purposes, may be an infringement. The practical reality is that many Twitter users will be only too happy to have their tweets retweeted and so the risk of being sued for copyright infringement will often be very low, although the safe bet is to obtain consent from the relevant Twitter user.

amoyal asked: Can I be liable for erroneous Tweets? (factually incorrect)

Ashley Hurst: There is no legal liability for innocently making false statements which are not defamatory. However, if the false statement is also defamatory of a person or company (i.e. it lowers their reputation in the eyes of the ordinary reader), the tweeter could be liable for defamation. See for example the recent case of Cairns v Modi, where the former international cricketer Chris Cairns is suing Lalit Modi for a defamatory tweet which allegedly accused Cairns of match-fixing (see my post on Reputation Online ). If the false statement is made intentionally or without any regard for the truth or falsity of it, the maker of the statement may also be liable for malicious falsehood, which is similar to defamation except that there is no need to show that the statement is defamatory. This cause of action is often used where malicious false statements are made about products.

@charliesaidthat said: I would love to know more about the ASA/CAP March 2011 regs implications for employees that blog.

Ashley Hurst: The big change with the new CAP code provisions (which take effect from 1 March 2011) is that they will apply to “non-paid for” advertising and marketing communications. The CAP Code already covers online advertising and marketing by email, texts, pop-ups and banner ads, and viral campaigns. However, it will now cover advertising and marketing on company websites and through social media such as on Twitter and Facebook where the purpose of the communication is to sell something.

This means that all official tweets and other forms of non-paid for online advertising and marketing will need to be checked carefully for accuracy. In particular, from 1 March 2011, marketing communications on company websites or through social media must not: (1) falsely claim or imply that the marketer is a consumer; (2) make claims about products and services which cannot be objectively substantiated; (3) mislead consumers by exaggerating the benefits or qualities of products or services; (4) make misleading statements about price, for example by omitting delivery charges; (5) mislead as to the availability of products or services; (6) make inaccurate or misleading comparisons with other products or services; (7) cause harm and offence; or (8) fail to provide key information of origin when selling over the internet (e.g. the address of the seller).

One of the difficulties for PRs will be in determining when PR campaigns may be construed as advertising or marketing campaigns. Whereas as this is usually an easy distinction to make for traditional forms of advertising and marketing, it may be more difficult where, for example, the company’s Twitter feed is used to promote a new product. See the ASA’s website for more details and the proposed amendments to the Code.

@charliesaidthat also said: I would also ask about UGC and the implications/risks of moderating content (I assume this makes you a publisher and liable?)

Ashley Hurst: A company which hosts third party material on its website (for example, a discussion forum) will be potentially liable as a publisher of that material, including for defamation and infringement of copyright. However, the hosting company will normally have a defence where it did not previously know about the unlawful material and acted quickly to remove it once on notice of it. This is known as “innocent dissemination” and is what gives rise to the dilemma that if companies moderate (whether before or after publication), they improve the content of the website but risk losing this defence. Companies therefore need to conduct a risk assessment as to the benefits of moderating. It is often more important for companies to maintain the integrity of their websites and control the content of their forums than to entirely remove the risk of liability for third-party content. Moderation, together with an effective complaints and take-down procedure, can often be enough to remove most of the risk of being sued.

More questions? Let us know!

Want to know more about developing social media strategy, corporate policy and usage guidelines? Get in touch with kate@wisdomlondon.com or call on 07540 970 225 for a chat and initial advice.